The Congressional Accountability Act, one of the signal reforms instituted after the Republican takeover of Congress in 1995, is under attack again. This time, it’s from the Architect of the Capitol, who is asking the federal courts to decide whether he has to obey an order issued by the Office of Compliance, which Congress created.
The CAA was passed to provide Congressional employees the same health, safety and civil rights protections afforded under law to workers in other branches of the federal government and in the private sector. The Office of Compliance was set up to enforce that law — first through counseling, and then by arbitration and issuance of orders. Employees also have the right to take grievances to federal court.
This was the recourse used in a case we’ve commented upon before, that of former Senate staffer Rita Bastien, who charged that she was fired from her district caseworker position in Sen. Ben Nighthorse Campbell’s (R-Colo.) office on account of her age.
Following reasoning supplied in a brief by the Senate’s employment counsel, a federal district judge — shockingly, in our view — threw out the case, contending that the CAA violates the Constitution’s Speech or Debate Clause.
Bastien has appealed to the 10th U.S. Circuit Court of Appeals and we remain disturbed that, despite the urging of two of the CAA’s co-sponsors, Reps. Christopher Shays (R-Conn.) and Jim Moran (D-Va.), Congressional leaders have not intervened to defend the act. As we wrote in October, if the CAA doesn’t protect a district worker in Colorado, it would conceivably leave only custodial and service employees covered by the act — not what the CAA authors intended, or touted, when the law was written.
But the Architect’s action in the latest case suggests that the CAA might not even protect those employees. Indeed, Juanita Johnson was a custodial worker for 18 years. She developed asthma and allergies from dust and fumes and in 1999 asked for a new work assignment. Refused, she filed a complaint with the Office of Compliance. Last year, an arbitrator finally ordered that she be given a new job driving a Senate subway car and awarded her $61,000 in damages, back pay and legal fees.
Instead of complying, as it almost always does when ordered to correct health and safety violations under the CAA, the Architect’s office has sued the Office of Compliance, contending that its decisions aren’t binding unless upheld by the U.S. Court of Appeals for the Federal Circuit. Johnson does have a job driving a subway car, but the Architect refuses to make her appointment permanent or raise her pay, pending the outcome of the suit.
There’s a question here of whether, under the doctrine of separation of powers, the courts should be judging internal Congressional employment policies at all. For sure, Congressional leaders should be standing up for one of their most progressive reforms.